J-S31020-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KENNETH WHITE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1391 EDA 2017

Appeal from the Judgment of Sentence December 23, 2016

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0006576-2016

BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY LAZARUS, J.: FILED JUNE 12, 2018

Kenneth White appeals from his judgment of sentence, entered in the 

Court of Common Pleas of Philadelphia County, after he was convicted, in a 

nonjury trial, of aggravated assault,1 attempted arson,2 possessing 

instruments of crime (“PIC”),3 simple assault,4 and recklessly endangering 

another person.5 On appeal, White challenges the sufficiency of the evidence 

as to his aggravated assault and attempted arson convictions. After careful 

review, we affirm.

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1 18 Pa.C.S.A. § 2702(a)(1).

2 18 Pa.C.S.A. §§ 901(a) and 3301.

3 18 Pa.C.S.A. § 907(a).

4 18 Pa.C.S.A. § 2701(a).

5 18 Pa.C.S.A. § 2705.
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The trial court cogently set forth the facts of this case as follows:

On June 17, 2016, at approximately 3:00 [p.m.], Latanya Pressley 

(“Pressley”) and [White] got into an argument about [White’s] 

drinking and medication use. The argument soon escalated. 

Pressley locked herself in the bathroom because she was scared 

for her safety, but [White] kicked in the door. While Pressley 

cowered in the shower, [White] began spraying lighter fluid on the 

curtain, threatening to set her on fire.

In the meantime, Police Officer Matthew Rivera and backup 

officers responded to a radio call for a disturbance at the 

residence. Upon arriving at the property, Officer Rivera knocked 

on the front door but received no response. When he knocked on 

the front window, Officer Rivera heard a female screaming inside. 

He also heard what sounded like a struggle, including items being 

dropped. When Pressley heard Officer Rivera knocking, she 

pushed [White] and ran downstairs. [White] followed her. He 

opened the door, saw Officer Rivera, slammed the door, and ran 

to the back of the house. Pressley re-opened the door for Officer 

Rivera. She was screaming, crying, shaking hysterically, and 

pointing to [White], repeatedly claiming that [White] had tried to 

set her on fire. Officer Rivera immediately pursued [White], who 

was stopped by backup officers at the rear of the residence, and 

taken into custody.

As Officer Rivera surveyed the property, he saw the bathroom 

door hanging off its hinges, the furniture in disarray, and the 

shower curtain partially pulled down. He also noticed the “very 

strong” smell of lighter fluid. He saw lighter fluid sprayed on the 

bathroom floor and shower curtain. A bottle of lighter fluid was 

on the bathroom floor, and a lighter was on the floor just outside 

the bathroom. Pressley, herself, also smelled so strongly of lighter 

fluid that Officer Rivera could detect the odor even as she sat in 

the backseat of his patrol car with the windows open on the way 

to her interview with detectives.

Lieutenant Assistant Fire Marshal Steven McMichael (an expert in 

the field of the causes and origins of fires and explosions) was 

called to the scene, as was a trained, certified accelerant detection 

canine, “Chance.” Chance alerted to lighter fluid in the bottle on 

the bathroom floor and on the bathroom rug. Lieutenant 

McMichael also observed the lighter on the floor a mere three feet 

from where the lighter fluid bottle was. Based on these 
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observations and Chance’s response at the scene, Lieutenant 

McMichael concluded that someone had attempted to start a fire 

in the bathroom.

Trial Court Opinion, 8/3/17, at 1-3 (citations to record omitted).

On October 20, 2016, the Honorable Donna M. Woelpper found White 

guilty of the above charges. On December 23, 2016, the court sentenced 

White to an aggregate term of 31⁄2 to 12 years’ incarceration, followed by 7 

years of probation. Post-sentence motions were denied by the trial court on 

April 19, 2017. White filed a timely notice of appeal to this Court, followed by 

a court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on 

appeal.6 

White challenges the sufficiency of the evidence as to his aggravated 

assault and attempted arson convictions. We begin by noting our standard of 

review:

The standard we apply in reviewing the sufficiency of evidence is 

whether, viewing all the evidence admitted at trial in the light 

most favorable to the verdict winner, there is sufficient evidence 

to enable the factfinder to find every element of the crime beyond 

a reasonable doubt. In applying the above test, we may not 

[re]weigh the evidence and substitute our judgment for that of 

the fact-finder. In addition, we note that the facts and 

circumstances established by the Commonwealth need not 

preclude every possibility of innocence. Any doubts regarding a 

defendant’s guilt may be resolved by the fact-finder unless the 

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6 The trial court found that White had waived his sufficiency claims because 

he failed to specify in his Rule 1925(b) statement the elements of the offenses 

he believes the Commonwealth failed to prove. White has requested that we 

either find that he has not waived the claims or, in the alternative, remand for 

the filing of an amended Rule 1925(b) statement. Because we believe the 

record is sufficient to address White’s claims, we decline to either find waiver 

or require a remand and will address the merits of his claims.
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evidence is so weak and inconclusive that as a matter of law no 

probability of fact may be drawn from the combined 

circumstances. The Commonwealth may sustain its burden of 

proving every element of the crime beyond a reasonable doubt by 

means of wholly circumstantial evidence. Moreover, in applying 

the above test, the entire record must be evaluated and all 

evidence actually received must be considered. Finally, the trier 

of fact while passing upon the credibility of witnesses and the 

weight of the evidence produced, is free to believe all, part or none 

of the evidence. 

Commonwealth v. Cunningham, 805 A.2d 566, 570–71 (Pa. Super. 2002), 

quoting Commonwealth v. Vetrini, 734 A.2d 404, 406–07 (Pa. Super. 1999) 

(internal citations and brackets omitted).

To establish the crime of aggravated assault, the Commonwealth was 

required to demonstrate that White intended to inflict serious bodily injury 

upon the victim and committed any act constituting a substantial step toward 

inflicting such an injury. 18 Pa.C.S.A. § 2702(a)(1); Commonwealth v. 

Fortune, 68 A.3d 980, 984 (Pa. Super. 2013) (en banc). In order to prove 

White committed attempted arson, the Commonwealth was required to prove 

that, with intent to commit arson, White did any act which constitutes a 

substantial step toward the commission of that crime. See 18 Pa.C.S.A. § 

901(a). A person commits arson if he intentionally starts a fire, on his own 

property or on that of another, and thereby recklessly places another person 

in danger of death or bodily injury. See 18 Pa.C.S.A. § 3301(a). “As intent 

is a subjective frame of mind, it is of necessity difficult of direct proof.” 

Commonwealth v. Matthews, 870 A.2d 924, 929 (Pa. upper. 2005) 

(citations omitted). Accordingly, intent may be proven by direct or 
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circumstantial evidence and may be inferred from acts, conduct or attendant 

circumstances. Id.

Here, the Commonwealth presented ample evidence to prove both 

aggravated assault and attempted arson. Officer Rivera testified that Pressley 

repeatedly told him, in the immediate aftermath of the incident, that White 

had tried to set her on fire. Officer Rivera stated that, at the time, Pressley 

was extremely upset, shaking, and crying hysterically. Officer Rivera also 

testified that he could smell the odor of lighter fluid emanating from Pressley’s 

person, in the bathroom, and on White himself. A canine officer also confirmed 

the presence of lighter fluid in the bathroom, and both Officer Rivera and 

Lieutenant McMichael testified that there was a lighter lying on the floor 

directly outside the bathroom. Moreover, Pressley’s statement to police, given 

the day of the incident, was admitted into evidence as a prior inconsistent 

statement and corroborated Officer Rivera’s version of events. 

White asserts that “[i]t is clear that the trial court in this case disbelieved 

Ms. Pressley’s recantation of her statement to the detective and relied upon 

that statement” to find White guilty. Brief of Appellant, at 14. White argues

that the verdicts cannot stand because they were based on the trial court’s 

disbelief of Pressley’s in-court testimony, rather than on affirmative proof 

presented by the Commonwealth. In support of his claim, White relies on 

Commonwealth v. Scott, 597 A.2d 1220 (Pa. Super. 1991), in which our 

Court held that it is impermissible to substitute trial court’s disbelief of an 

appellant’s testimony for presentation by the Commonwealth of evidence 
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beyond a reasonable doubt, and Commonwealth v. Brady, 560 A.2d 802 

(Pa. Super. 1989), in which we held that a finding by the trial court that an 

alleged accomplice was not credible does not support an affirmative inference 

of the appellant’s guilt. These cases are inapposite. 

In both Scott and Brady, the Commonwealth failed to present 

affirmative evidence of the appellants’ guilt beyond a reasonable doubt. 

Rather, the verdicts were based on the disbelief of witnesses’ testimony. In 

contrast, here, the Commonwealth presented ample affirmative evidence of 

White’s guilt, not only through the testimony of Officer Rivera and Lieutenant 

McMichael, but also Pressley’s own statement to police from the day of the 

incident. Accordingly, while the trial court may well have disbelieved 

Pressley’s recantation testimony, its verdict was also based on affirmative 

evidence of White’s guilt provided by the Commonwealth.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/12/18